Criminal Offence of Abuse of Power Contrary to the Principles of the ECHR and the Constitution of Serbia

Abstract

The Modern Prosecutorial Service was established in Serbia by the Law on the Criminal Court Proceedings from February 20, 1865. Since then, the decay of the General Supervisory Function of the Public Prosecution has been slowly executed, and it is now out of the Serbian Legal System. At the same time, there has been demonstrated the strong political will to change the Criminal Code in order to legitimise the new institutions and rule of law.

Later on, these competences were extended to the supervision of all administrative acts of the executive, taking measures before the courts and executive state institutions in order to fulfil the State Plans and prosecution of criminal offenders (1946). Supervision of the legality function did not disappear even by the Law on the Public Prosecution from 1954. by the provisions of the Law from 1965, public prosecution was obliged only to monitor and study society and the phenomenon that were important for the successful functioning of the prosecution, and to report to the competent state organs the noticed violations of law, abuses of power and incorrect behavior of state officials or the managers in public enterprises, and to report on the organization of the prosecution, in order for certain measures to be undertaken.

At that time, in the material criminal law, the criminal offence "Abuse of official duty" was introduced as a mighty legal tool to prevent all undefined strikes in the field of official duties in the state administration or in the public enterprises. It has the "blanco body", the space within the definition of "using the official duty or the position" where various infringements could have been put, not being found out in any other specific criminal offence of the Penal Code.

The development of the material criminal law, was not following the changes in criminal proceedings because of the lack of the political will and the repressive dogmathic minded lawmakers who still find it necessary to apply not human and unconstitutional provisions of the Article 359 of the Criminal Code of Serbia.

According to the newest legislation, the National Parliament has no obligation to put in the session and adopt the Annual Report and other Reports of the Republican Public Prosecutor, but has only received them as knowledge.

But in the domain of positive criminal law, the criminal offences, Public Prosecution are obliged to apply the law, specifically the criminal offence of abuse of power, to the subjects in the state and public organization administration and in private enterprises and their management in contrary to the Article 82 of the new Constitution of Serbia and the Chapters VI and XXII of the ECHR.

Why is it so important? New standards mean that nobody has the monopoly on truth, religious or other ideological faith or honesty to do anything out of their constitutional competencies. There are no any of the Prosecutorial Supervisory Functions over the regulation of social relations and arbitrary except those provided by some wrong concept crimes, and here is an academic approach saying that it should be discussed taking into consideration that the real challenge of Serbian lawmakers therefore, is to make the market work for the poor. That means bringing the benefits of a well-designed and impartially implemented Rule of Law to their daily lives. This task is one that advocates for human rights by the ECHR and the Constitution of Serbia and alternative lawyering of the Public Prosecution and NGO,s and other relevant organisations. The most important result of this development is that the general improvement of the National Legal System is in accordance with the Recommendation of the Council of Europe and with other visionary global projects. We gave the examples of the strong political will that moved changes in the past; now it is time to move them again.

Possible legal solutions were also disccuessed regarding the comparative analysis of criminal and other punishable offences (administrative punishment), protecting constitutionality and legality, human rights and civil liberties and putting the man and the citizen into the very spot of the protection instead of state and other colectivities,. all on the grounds of the Constitution, Law, ratified international treaty and regulation passed on the grounds of the Law.